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Canadian Criminal Procedure and Practice/Search and Seizure/Warrantless Searches/Exigent Circumstances

< Canadian Criminal Procedure and Practice | Search and Seizure | Warrantless Searches

General Principles

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Where there are "exigent circumstances", a police officer may forego the requirement of a search warrant.

The Courts have long recognized that the protections of s. 8 are "circumscribed by the existence of the potential for serious and immediate harm." Exigent circumstances "inform the reasonableness of the search...and may justify the absence of prior judicial authorization".[1]

This rule has been codified in s. 487.11 of the Criminal Code:

Where warrant not necessary
487.11 A peace officer, or a public officer who has been appointed or designated to administer or enforce any federal or provincial law and whose duties include the enforcement of this or any other Act of Parliament, may, in the course of his or her duties, exercise any of the powers described in subsection 487(1) or 492.1(1) without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

1997, c. 18, s. 46.


– CCC

In the context of a drug offence s. 11(7) of the Controlled Drugs and Substances Act provides that:

(7) A peace officer may exercise any of the powers described in subsection (1), (5) or (6) [the subsections setting out the powers of a peace officer having a search warrant] without a warrant if the conditions for obtaining a warrant exist but by reason of exigent circumstances it would be impracticable to obtain one.

Generally, "exigent circumstances" exists where "there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed."[2]

In the context of police responding to 911 calls, the police have a duty to protect life which may result in a permissible encroachment on otherwise protected privacy rights. This right to protect life is "engaged whenever it can be inferred that the 911 caller is or may be in some distress, including cases where the call is disconnected before the nature of the emergency can be determined." [3]

The Crown must present an "evidentiary basis" to establish the underlying police safety concerns.[4]

  1. ↑ R. v. Tse, 2012 SCC 16 (CanLII), 2012 SCC 16
  2. ↑ R. v. Grant, 1993 CanLII 68 (SCC), [1993] 3 S.C.R. 223 at para 32, Sopinka, J.
  3. ↑ R. v. Godoy, 1999 CanLII 709 (SCC), [1999] 1 S.C.R. 311
  4. ↑ R. v. Davis, [2012] A.J. No. 488 (P.C.) at para. 23

Entry of residences

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The Supreme Court of Canada in R v Feeney held that s. 8 of the Charter requires a warrant to enter a residence to arrest unless it falls into the common law doctrine of "hot pursuit".[1]

Sections between 529 to 529.5 were added subsequent to the Feeney decision.

Authority to enter dwelling without warrant
529.3 (1) Without limiting or restricting any power a peace officer may have to enter a dwelling-house under this or any other Act or law, the peace officer may enter the dwelling-house for the purpose of arresting or apprehending a person, without a warrant referred to in section 529 or 529.1 authorizing the entry, if the peace officer has reasonable grounds to believe that the person is present in the dwelling-house, and the conditions for obtaining a warrant under section 529.1 exist but by reason of exigent circumstances it would be impracticable to obtain a warrant.

Exigent circumstances
(2) For the purposes of subsection (1), exigent circumstances include circumstances in which the peace officer

(a) has reasonable grounds to suspect that entry into the dwelling-house is necessary to prevent imminent bodily harm or death to any person; or
(b) has reasonable grounds to believe that evidence relating to the commission of an indictable offence is present in the dwelling-house and that entry into the dwelling-house is necessary to prevent the imminent loss or imminent destruction of the evidence.

1997, c. 39, s. 2.


– CCC

Section 529.3 "relieves against the requirement for a warrant to arrest where exigent circumstances make it impractical to obtain one."[2]

Exigent circumstances are "generally found to exist where the police have reasonable grounds to be concerned that prior announcement would: (i) expose those executing the warrant to harm and/or (ii) result in loss or destruction of evidence and/or (iii) expose the occupants to harm."[3]

Where police respond to a dropped 911 call they can enter the home if they have reasonable grounds to believe an offence has been committed. (R. v. Godoy [1999] 1 SCR 311, 1999 CanLII 709)

Searches of surrounding property is treated much in the same way as residences themselves. The police cannot search the perimeter of a residence without a warrant.[4]

On a warrantless entry into a residence the courts should look at factors including:[5]

  1. what information did the officers have?
  2. what information could they infer?
  3. what were their alternate courses of action?
  4. what was the reasonableness of the action they took?

Search of a rental room even with the consent of the building owner will generally require a warrant.[6]


At common law, the doctrine of hot pursuit permits a peace officer "to enter a private premises to make an arrest in hot pursuit".[7]

Hot Pursuit Exception

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A "hot pursuit" requires a "fresh pursuit" that is a "continuous pursuit conducted with reasonable diligence, so that pursuit and capture along with the commission of the offence may be considered as forming part of a single transaction."[8]

Before the doctrine applies, the police must "already have the power and grounds to arrest without a warrant" before entering the residence.[9]

However, the police officer does not have to have personal knowledge to form the grounds. An officer continuing the pursuit from another officer can be sufficient.[10]

This exception is considered "narrow" and presumes the police are "literally at the heels of a suspect at the moment the suspect enters a dwelling-house"[11]

  1. ↑ R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13
  2. ↑ R. v. Knelsen, 2012 MBQB 242 (CanLII)
  3. ↑ R. v. DeWolfe 2007 NSCA 79 (CanLII), (2007), 222 C.C.C. (3d) 491
    R. v. Knelsen, 2012 MBQB 242 (CanLII) (Exigent circumstances "include circumstances in which the police officer has reasonable grounds to suspect that entry is necessary to prevent imminent bodily harm or death to any person.")
  4. ↑ R. v. Kokesch, [1990] 3 SCR 3, 1990 CanLII 55
  5. ↑ R. v. Jamieson, 2002 BCCA 411 at 24
  6. ↑ R. v. Kenny (1992) 52 OAC 70
  7. ↑ R. v. Macooh, 1993 CanLII 107 (SCC), [1993] 2 S.C.R. 802 at para. 13
  8. ↑ Macooh at para. 24
    see also R. v. Hope, [2007] N.S.J. No. 433 (C.A.), at para 30
    R. v. Clarke, [2005] O.J. No. 1825 (C.A.), at para 29
  9. ↑ see R. v. Van Puyenbroek 2007 ONCA 824 at para 21
  10. ↑ see also R. v. Haglof, 2000 BCCA 604 (CanLII), 149 C.C.C. (3d) 248 and Van Puyenbroek
  11. ↑ Van Puyenbroek

Wiretap

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See Emergency_Wiretaps

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